Methodological Problems in Comparative Law

1972 ◽  
Vol 7 (4) ◽  
pp. 465-474 ◽  
Author(s):  
K. Zweigert
Keyword(s):  
Comparative Law ◽  
Legal Rule ◽  
Legal Method ◽  
Legal Science ◽  
Legal Thinking ◽  
Methodological Problems ◽  
The Subject

The methodical aspects of comparative law is a field which has, up to now, hardly been cultivated systematically although probably more so in Israel than in some other countries.The subject normally evokes the question whether comparative law is a legal technique, a method of legal thinking, or an autonomous discipline of legal science, a field of law in its own right. I do not intend to deal with this problem because I think the effort will yield little. Any possible answer I would suggest, is true only to some extent depending on the context: if, for example, comparative law is used for the interpretation of a legal rule, it certainly belongs to the method of interpretation and thus lies in the field of legal method; if a special course in comparative law is taught to introduce students to its techniques and its basic premises, you may properly regard it as a discipline of its own.

scholarly journals Interpretation of jurisprudence and law in the doctrine of T. E. Holland

2021 ◽  
pp. 46-60
Author(s):  
Anton Mikhailovich Mikhailov
Keyword(s):  
Subsequent Development ◽  
Legal Positivism ◽  
Legal Doctrine ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Legal Method ◽  
Legal Science ◽  
Biographical Approach ◽  
The Subject ◽  
Key Aspects

The subject of this research is the legal doctrine of the leading representative of English legal positivism of the last quarter of the XIX – first third of the XX centuries of Thomas Erskine Holland. The article is dedicated to examination of the two key aspects of his concept – comprehension of the nature of jurisprudence as a science, and law as a type of social norm. Leaning on the classic work of the British jurist “The Elements of Jurisprudence” (1880), the author defines the understanding of jurisprudence and law, reveals the historical-cultural meaning of Holland's legal doctrine for the subsequent development of English jurisprudence. Methodological framework is comprised of the historical approach, elements of biographical approach, techniques and procedures of legal hermeneutics, rules and techniques of formal logic, and elements of comparative-legal method. The scientific novelty lies in the fact that this article is first within Russian legal science to conduct the concept analysis of the key theoretical-legal definitions (jurisprudence and law) of T. Holland’s doctrine, as well as reveal the ideological interrelation between the views of the British jurist and the founders of analytical jurisprudence. The author also substantiates the position, according to which Holland's approach towards comprehension of the nature of jurisprudence as a science can be defined as dogmatic. T. Holland's contribution to the development of legal positivism consists in argumentation of the formal and analytical nature of legal science, as well as in carrying out gradual differentiation of positive law from natural and social norms, and analysis of the crucial theoretical concepts of legal science.

Legal Science Methodology through the Lens of Legal Thinking Innovations

2020 ◽  
Vol 11 (4) ◽  
pp. 1145
Author(s):  
Taras Z. GARASYMIV ◽  
Nadiya P. PAVLIV-SAMOYIL ◽  
Andrii I. HODIAK
Keyword(s):  
Comparative Analysis ◽  
Social Relations ◽  
Subject Matter ◽  
Legal Research ◽  
Teaching Aids ◽  
Legal Science ◽  
Depth Analysis ◽  
Legal Thinking ◽  
The Subject ◽  
Methodological Approaches

The relevance of the subject matter lies in the low efficiency of generally accepted methods of legal research, the lack of modification and transformation from due to obsolescence and inconsistency with modern tendencies in the development of the legal scientific framework and legal thinking of subjects of such activities. This paper is not limited to the classical methods of cognition, it also touches on the topics of basic legal concepts, theories, and well-known approaches in legal science. The main purpose of this paper is to designate the modern methodology of legal science through the lens of innovations in legal thinking, methods of applying methodological approaches, including an in-depth analysis of research methods in legal disciplines with the use of a comparative analysis of Ukraine and countries of the European economic zone. To achieve this purpose, the following special methods of legal analysis were applied in the scientific paper: analysis, synthesis, generalization, hermeneutic method, historical method, comparative and structural-functional methods. As a result of the study, the already existing methodological approaches will be expressly outlined, as well as those that emerged due to innovations in legal thinking and are capable of covering the features of knowledge of law as a social phenomenon. Furthermore, urgent problems of theoretical and methodological aspects of the study of modern legal systems were identified on the example of different states. One of the successes of the scientific analysis of the methodology of legal science lies in the proposal of methods for conducting complex legal research, described by the features of modernity, relevance, and compliance with the information and technological development of social relations. In addition, the sources regarding the methodology of law in Ukraine and foreign countries are systematized. A historical insight into the becoming of the main tendencies and qualities of the evolution of views on the methodology of law will be the subject of comparative analysis in order to identify new methods of legal cognition. Recommendations regarding the subject matter are expressed in the prospects for further research on the problems of the methodology of legal science and the creation of ways to overcome them. Furthermore, research materials can be used in the preparation of training materials, teaching aids, as well as in the learning process in various areas of legal disciplines.

Crimes against marriage and family before Criminal Code 1968

2020 ◽  
Vol 15 (1-3) ◽  
pp. 44-59
Author(s):  
Lidia Peneva
Keyword(s):  
Criminal Code ◽  
Point Of View ◽  
Marriage And Family ◽  
Historical Method ◽  
Legal Method ◽  
The Subject ◽  
The Republic ◽  
Criminal Groups ◽  
The Moment ◽  
Structural Point

Crimes against marriage and family are a particular group of social relation­ships that the law has defended properly in view of the high public significance and value they enjoy. At the moment they are regulated in Chapter VI, Section I, of the specific part of the Penal Code the Repub­lic of Bulgaria. The subject matter of this Statement will, however, be the legisla­tive provisions concerning these criminal­ized acts in retrospect. The purpose of the study is to show by historical method and through the comparatively legal method the development of these criminal groups during the periods of various criminal laws in Bulgaria. This will also provide a basis for reflection on possible de lege ferenda proposals. This report from a structural point of view will be divided into three distinct points, marking each of the penal laws in the Republic of Bulgaria, which were in force before 1968.

Selected studies of the Menopause

1973 ◽  
Vol 5 (4) ◽  
pp. 533-555 ◽  
Author(s):  
Sonja M. McKinlay ◽  
John B. McKinlay
Keyword(s):  
Clinical Trial ◽  
Clinical Observation ◽  
Annotated Bibliography ◽  
The Past ◽  
General Report ◽  
Methodological Problems ◽  
The Subject

SummaryLiterature on the subject of the menopause, primarily from the past three decades, is selectively reviewed in the form of an annotated bibliography. In order to highlight particular methodological problems, the review is presented in three sections, each preceded by a brief discussion, as follows: (a) the general report of clinical observation or experience, (b) the survey, and (c) the clinical trial. Several recommendations are also made for further research in this field.

The grounds and conditions of securing a claim in administrative proceedings

2021 ◽  
Vol 12 (2) ◽  
Author(s):  
Yara Olena ◽  
◽  
Kravchuk O.V. ◽  
Keyword(s):  
Law Enforcement ◽  
Subject Matter ◽  
Direct Connection ◽  
Individual Rights ◽  
Administrative Procedure ◽  
Judicial Practice ◽  
Legal Provisions ◽  
Legal Science ◽  
The Subject ◽  
Administrative Proceedings

The article examines the grounds and conditions of securing a claim in administrative proceedings. By analyzing the legal provisions, law enforcement (judicial) practice in connection with the acquisitions of legal science, the grounds and conditions of securing a claim in administrative proceedings are highlighted. Attention is focused on problematic issues that arise when courts check the grounds for securing a claim and compliance with the terms of securing a claim. In particular, attention is drawn to the fact that securing an administrative claim on the grounds of obvious signs of illegality of the decision, action or inaction of the subject of power is virtually inapplicable due to reservations about the inadmissibility of resolving the dispute on the merits. It is concluded that an administrative lawsuit can be secured if there is at least one of the grounds specified in part one of Article 150 of the Code of Administrative Procedure of Ukraine and compliance with the conditions of proportionality, adequacy of measures to ensure administrative lawsuit, direct connection with the subject matter and legal the defendant's conduct in the dispute. Emphasis is placed on the fact that the freedom of discretion (discretion) of the court in the application of measures to ensure an administrative claim is unconditional, but not unlimited and controlled by the requirement to properly justify the relevant procedural action. Keywords: administrative court, administrative claim, administrative proceedings, securing the claim, principles of administrative proceedings, protection of individual rights and freedoms, grounds for securing the claim, conditions for securing the claim

scholarly journals Argentine Concordat as an International Agreement Regulating the Law of Patronage

2020 ◽  
Vol 25 (1) ◽  
pp. 89-109
Author(s):  
Marta Zuzanna Osuchowska
Keyword(s):  
Social Sciences ◽  
Historical Background ◽  
International Agreement ◽  
Holy See ◽  
Bilateral Relations ◽  
Legal Method ◽  
History Of ◽  
The Subject ◽  
The 1960S ◽  
The Right

In the history of relations between the Argentinean government and the Holy See, two ideas are permanently intertwined: signing the Concordat and defending national patronage. The changes that occurred in the 1960s indicated that exercising the right of patronage, based on the principles outlined in the Constitution, was impossible, and the peaceful establishment of the principles of bilateral relations could only be indicated through an international agreement. The Concordat signed by Argentina in 1966 removed the national patronage, but the changes to the content of the Constitution were introduced only in 1994. The aim of the study is to show the concordat agreement concluded in 1966 by Argentina with the Holy See as an example of an international agreement. The main focus is the presentation of concordat standards for the institution of patronage. Due to the subject and purpose of the study, the work uses methods typical of social sciences in the legal science discipline. The dogmatic-legal method is the basis for consideration of the Concordat as a source of Argentine law, and as an auxiliary method, the historical-legal method was used to show the historical background of the presented issue.

scholarly journals THE ROLE OF RATIONALITY PHILOSOPHY IN LEGAL STUDIES (PART I)

2019 ◽  
Vol 23 (1) ◽  
pp. 48-61
Author(s):  
Valeriy P Ivanskiy ◽  
Sergey I Kovalev
Keyword(s):  
Point Of View ◽  
Legal Knowledge ◽  
Scientific Rationality ◽  
Clear Trend ◽  
Legal Studies ◽  
Legal Science ◽  
Analysis And Synthesis ◽  
Legal Thinking ◽  
Legal Rationality

The relevance of the article, which consists of two parts, is that the various theories of rationality presented only in philosophical works are considered. Meanwhile, it should be noted that in recent decades in scientific works on jurisprudence there is a clear trend of borrowing such terms from philosophy as «classical», «non-classical» or «post-non-classical» science in the description of a concept of law. Nevertheless, in legal studies there is still no concept of rationality, the criteria for its classification, allowing to describe the diversity of manifestations of legal reality. The purpose of the study is: 1) to find new non-classical foundations for the development of legal knowledge; 2) to substantiate the point of view that the category of "scientific rationality" and its typology used in philosophy, it is necessary to introduce into scientific use of legal science, which will push the boundaries of knowledge of legal reality; 3) to describe the features of understanding of the term "scientific rationality" in law in the context of its classification into the following two groups: classical and neoclassical (post-classical), as well as non-classical and post-classical. In the process of studying the philosophy of rationality in legal studies used a diverse set of methodological tools: 1) General philosophical methods (dialectical and idealistic); 2) General scientific methods - analysis and synthesis, deduction and induction, analogy, comparison; 3) and private (special) - logical, comparative-legal, formal-legal, normative-dogmatic; 4) method of interpretation, including the method of problem-theoretical reconstruction. The main results of achieving the goal of the study were proposals on: 1) introduction of the concept of "types and models of legal rationality" into the scientific circulation of jurisprudence; 2) classification of legal rationality into classical and non - classical types and corresponding models-neoclassical (post-classical) and post-non-classical. It should be noted that the post-classical and post-non-classical styles of legal thinking are evolved versions, respectively, of the classical and non-classical types of legal rationality. The basis for the classification of types of scientific rationality in legal science was the anthropological factor-consciousness homo juridicus and methodological tools with which legal consciousness is known. The novelty of the study is that the above classification of epistemological paradigms allows us to look at the law as a multilevel reality, which is simultaneously inherent in the two mechanisms of its Constitution - external and internal. Moreover, the presented criteria-based classification of legal rationality is the basis for the development of legal knowledge.

scholarly journals On Understanding the Administrative Law Subject

2020 ◽  
Vol 12 ◽  
pp. 18-20
Author(s):  
Olga N. Ordina ◽  
Keyword(s):  
Public Administration ◽  
Legal Theory ◽  
Administrative Law ◽  
Executive Power ◽  
Legal Science ◽  
Different Types ◽  
Common Concept ◽  
The Subject ◽  
Points Of View ◽  
Definition Of

In the administrative and legal science there is a refinement, change and expansion of the subject of the dynamic branch of administrative law, aimed at eliminating the resulting lag of legal theory from the legal reality. In our view, of the three basic categories that characterize the subject of administrative law, “public administration”, “executive power” and “administrativepublic activity”, the main generalization category is the category “administrative and public activities”. The phenomenon of the subject of administrative law refracts the problems and discussions inherent in the industry as a whole. In view of the existence of different points of view on the subject of administrative law, the legal science has not yet formulated a single definition of it. There is a tendency to overcome the conflict between different types of understanding, to bring together the positions of different concepts of understanding of administrative law in order to form a “universal” concept of it, to develop its common concept.

scholarly journals Methodological limitations of sociocultural studies of law

2021 ◽  
Vol 118 ◽  
pp. 01008
Author(s):  
Sergey Borisovich Zinkovsky
Keyword(s):  
Legal Analysis ◽  
Cultural Foundations ◽  
Legal Science ◽  
Actual Nature ◽  
The Social ◽  
Sociocultural Approach ◽  
The Subject ◽  
Sociocultural Studies ◽  
The One ◽  
Legal Concepts

The purpose of the study is to identify the methodological limitations of sociocultural studies of law. The research methods center around the thesis that the sociocultural approach in legal scholarship is most persuasive when implemented in a relatively limited social context. This kind of research is empirical and shows no attention to the creation of explanatory theoretical constructs. The possibilities for comparative legal analysis are also limited because empirical research is primarily descriptive. The result of the study proved that the methods of considering law through the prism of culture are not always able to provide clear tools for analyzing the social factors that determine the features of institutional and procedural differences in law. In addition, the study concludes that the study of law as a cultural phenomenon requires the use of ideal constructions in the process of cognition. On the one hand, it allows operating with concepts whose content is not formally defined. On the other hand, it entails the impossibility of identifying the general principles of the organization of real legal phenomena, the cause-and-effect relationships between them. Foreign sociocultural studies of law often use the concept of “cultural community”, the scope of which allows asserting that the subject of research goes far beyond the scope of legal science. The study’s novelty lies in an attempt to assess whether the search for cultural foundations of law “blurs” the subject of legal science. The main reason for the “conceptual blurring” of sociocultural studies of law is the lack of a universal, generally recognized approach to defining the concept of culture in Russian and foreign legal science. However, the reductionism of the context of sociocultural studies of law, the use of legal and non-legal concepts and categories cannot always be characterized as unproductive. The revealed methodological limitations of sociocultural studies of law do not prevent the explanation of the actual nature of legal phenomena.

The Science of Comparative Law

1939 ◽  
Vol 7 (1) ◽  
pp. 94-110 ◽  
Author(s):  
M. Schmitthoff
Keyword(s):  
Comparative Method ◽  
Comparative Law ◽  
The Other ◽  
Definite Function ◽  
Special Study ◽  
Legal Systems ◽  
Legal Problem ◽  
Positive Law ◽  
Legal Science ◽  
The Law

In the course of the recent revival of the study of Comparative Law, repeated attempts have been made to define the nature and province of this branch of the law. Some writers maintain that Comparative Law represents a method of study rather than a department of legal science. They point to the fact that the technique of comparing different legal systems can be employed in almost every branch of the law and that Comparative Law, unlike the branches of positive law, does not fulfil a definite function in the life of society. In particular, writers on jurisprudence and history such as J. Bryce, Holland and Professor Jenks are inclined to subscribe to this view. Among the jurists who have made a special study of Comparative Law, Professor Gutteridge and Professor Kaden are strongly in favour of this view. Professor Gutteridge says: ‘The comparative method lends itself to the study of any branch of legal learning.’ According to Professor Kaden, it is the province of Comparative Law to disclose the points of agreement and difference in the solution which is provided by several legal systems for the same legal problem. The learned writer denies, however, that it is the function of Comparative Law to found a system of legal abstractions on the results of factual comparison. On the other hand, a number of students of Comparative Law consider their subject as a special branch of the science of law. Professor Saleilles, Professor Lambert and Professor Rabel support this view.

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